Allowed

Bishwajit Henry v. The State of Bihar through the Principal Secretary

Patna HC13 Oct 2022CWJC/2446/2021

Case brief

AI extract

What is this about?

The Patna High Court quashed orders punishing a District Land Acquisition officer for passing a quasi-judicial order under the BLDR Act despite pending ceiling proceedings, holding the punishment unsustainable due to lack of evidence of misconduct or malafide intent.

What did the court decide?

Quashing of Memo No 2951 dated 26.02.2020 and Memo No 9171 dated 05.10.2020 along with consequential benefits.

Bishwajit Henry Vs The State of Bihar through… — Pension and Retirement Benefits | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No 2446 of 2021

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Bishwajit Henry S/o Nathaaniel Henry, Resident of Mission compound Saharsa, Ward no. 30, P.O. and P.S. Saharsa, District - Saharsa, pin - 852201, presently posted as District Land Acquisition officer Sitamadhi.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary, General Administration Department Government of Bihar, Patna.

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The Principal Secretary, General General Administration Department Government of Bihar, Patna.

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The Joint Secretary, General Administration Department Government of Bihar, Patna.

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The Divisional Commissioner Purnea.

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The District Magistrate, Purnea.

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... ... Respondent/s

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Appearance : For the Petitioner/s : M/s Alok Ranjan, Majid Mahboob Khan, Advs For the Respondent/s : Mr Sheo Shankar Prasad, SC VIII Mr Harshvardhan Shivsundaram, AC to SC VIII

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====================================================== CORAM: HONOURABLE MR JUSTICE MADHURESH PRASAD

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ORAL JUDGMENT

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Date : 13-10-2022

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Heard learned counsel for the petitioner and the

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respondents.

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2 This writ petition has been filed for the following

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reliefs:

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“(I) For quashing of order as contained in Memo No 2951 dated 26.02.2020 issued by the Additional Secretary, Government of Bihar, Patna, under the orders of the Governor of Bihar, whereby and where under an order of punishment has been passed against the petitioner:

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(A) Censure for the year, 2011 - 2012. (B) Withholding of two annual increments of pay without cumulative effect, in most arbitrary, illegal and unreasonable manner.

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(II) For quashing of Memo No 9171 dated 05.10.2020 issued by the Additional Secretary, General Administration Department, Government of Bihar, Patna under the orders of the Governor of Bihar, whereby and where under review filed by the petitioner has not been considered and the order of punishment was confirmed and order of punishment passed against the petitioner has been upheld in a most arbitrary, illegal, cryptic manner.

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(III) For any other appropriate relief/reliefs to which the petitioner is found entitled ind the facts and circumstances of this case.”

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3 While posted as a Deputy Collector, Land Reforms (DCLR) at Banmankhi Subdivision in the district of Purnea, the petitioner has passed an order under the Bihar Land Dispute Resolution Act, 2009 in Case No 80 of 2011 – 2012. The order was assailed by the applicant before the Divisional Commissioner and the admitted position is that the order dated 16.02.2012 passed by the petitioner has been set aside by the Divisional Commissioner.

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4 The Divisional Commissioner was of the opinion that the petitioner has passed the order in excess of jurisdiction. Such conclusion is based on the fact that one Miscellaneous Ceiling Case No 1 of 2010 under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961

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(hereinafter referred to as “ Land Ceiling Act ” for short), in respect of the same land, was pending before the Additional Collector, Land Ceiling, Purnea. It is under such circumstance that the petitioner has been served with a charge memo on Prapatra “ KA” under communication dated 21.05.2013. The charge reads as follows:

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“ vki cueu[kh vuqeaMy esa Hkwfelq/kkj mi lekgÙkkZ ds in ij inLFkkfir gSaA

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vkids }kjk Hkwfe fookn fujkdju okn la[;k&80@11&12 esa ikfjr vkns’k ds fo:) vihykFkhZ Jh jkts’k _f"k ,oa vU; }kjk vk;qDr] iwf.kZ;k¡ izeaMy] iwf.kZ;k¡ ds U;k;ky; esa vihy okn nk;j fd;k x;kA

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vk;qDr] iwf.kZ;k¡ izeaMy] iwf.kZ;k¡ }kjk vihy okn dh lwuokbZ ds Øe esa ik;k x;k fd vkius ekuuh; mPp U;k;ky; }kjk C.W.J.C No- 4744/84 ,oa 4926/84 esa ikfjr vkns’k ds vkyksd esa vij lekgÙkkZ] Hkw&gncanh] iwf.kZ;k¡ ds U;k;ky; esa py jgs fofo/k Hkw&gncanh okn la[;k&01@2010 dh lquokbZ yafcr jgus ds ckotwn vkius Hkwfe fookn fujkdj.k okn la[;k&80@11&12 esa fcgkj Hkwfe fookn fujkdj.k vf/kfu;e dh /kkjk&4¼2½ ,oa ¼3½ esa fufgr {ks=kf/kdkj ds izfrdwy vkns’k ikfjr dj fn;kA tcfd mDr Hkw&gncanh okn dh dk;Zokgh esa EkkStk&dpgjh cyqvk] Fkkuk la[;k&56] [kkrk la[;k&1460] 1465] 1764] 118 ,oa 119 esa dqy 40 ¼pkyhl½ [ksljksa ls jdok 21-05 ,dM+ Hkwfe dk LokfeRo dk fu/kkZj.k vij lekgÙkkZ] Hkw&gncanh] iwf.kZ;k¡ ds U;k;ky; esa fopkjk/khu gSA

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mDr ls Li V gS fd vkius vf/kdre lhek fu/kkZj.k ‘ vkns’k ,oa vtZu la’kks/ku&1972 dh /kkjk 5(ii) ,oa 16(i) (ii) dk Li V mYya?ku fd;k gSA blls ‘ Li V izrhr gksrk gS fd vkius ‘ iwokZxzg ls xzflr gksdj futh LokFkZ flf) gsrq vius {ks=kf/kdkj ls gVdj vkns’k ikfjr dj fn;k gSA

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‘ vkidk ;g dR; izFke n V;k fcgkj Hkwfe fookn fujkdj.k vf/kfu;e ,oa Hkw&gncanh vf/kfu;e dk ?kksj mYya?ku gS ftlls xaHkhj Hkw&fookn ls bUdkj ugha fd;k tk ldrkA ”

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5 The petitioner has responded to the charge memo by a

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detailed reply which is dated 25.09.2013. The petitioner, in his

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Patna High Court CWJC No.2446 of 2021 dt.13-10-2022 4/11

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reply, has stated that he was the competent authority under Section 2 (a) of the Bihar Land Disputes Resolution (for brevity, BLDR ) Act, 2009. However, he had not entertained the application filed before him after due consideration of pendency of the Miscellaneous Ceiling Case No 1 of 2010 before the Additional Collector. He had in fact rejected the application filed before him under the Bihar Land Dispute Resolution Act. However, he had issued an order while rejecting the claim, which were bona fide, for preventing any kind of untoward incident at the land in question.

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6 The order has been passed after due consideration of; and in furtherance of the orders passed by the High Court in CWJCs No 47440 of 1984 and 4926 of 1984, pendency of Miscellaneous Ceiling Case No 1 of 2010 for reconsideration, as well as the order passed by the Sub Divisional Officer under Section 146 of Criminal Procedure Code in respect of the lands in question. Even, for the sake of argument, if it is accepted that the order was without jurisdiction, the charge, in so far as it alleges extraneous consideration and personal gain being motive behind passing of the order, was not with reference to any material either in the charge memo or in the impugned order.

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7 Learned State Counsel, on the other hand, submits that Miscellaneous Land Ceiling Case No 1 of 2010 was pending before the Additional Collector. The petitioner was having full knowledge of pendency of the said case, which had been instituted pursuant to certain orders and directions passed by this Court in CWJC No 17477 of 1984. Still, the petitioner passed order dated 16.02.2012 under the BLDR Act in Case No 80 of 2011 – 2012. The petitioner, therefore, was served with a charge memo. After following the requisite procedure, and allowing the petitioner an opportunity of submitting his reply, he has been visited with minor punishment of censure; and withholding of two annual increments with non-cumulative effect. It is submitted that the entire procedure is fair and the punishment is also commensurate to the gravity of the offence and the same, therefore, requires no interference.

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8 For better appreciation, this Court would consider it useful to reproduce operative portion of order dated 16.02.2012 passed by the petitioner, which reads:

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“mijksDr rF;ksa ls iw.kZr% LiLV gS fd fookfnr Hkwfe e/;i{kdkjksa dh futh [kfr;kuh Hkwfe gSA ftlds lanHkZ esa ekuuh; mPp U;k;ky; iVuk ds vkns’kkuqlkj U;k;ky; vij lekgrkZ Hkwgcanh iwf.kZ;k¡ ds U;k;ky; esa fofo/k flfyax okn la0&1@2010 yafcr gSA vuqeaMy n.Mkf/kdkjh cueu[kh }kjk fookfnr Hkwfe dks /kkjk 146 n0iz0l0 ds vUrxZr dqdZ dh xbZ gSA ijUrq bruk ds ckotwn Hkh cxSj dksbZ nLrkosth; lk{; ds vkosndx.k fookfnr

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Patna High Court CWJC No.2446 of 2021 dt.13-10-2022 6/11

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Hkwfe dks gM+ius dh lkft’k dj jgs gS] rFkk fookfnr Hkwfe ds va’k jdok ij voS/k :i ls >ksiM+h fuekZ.k dj fy;k x;k gSA

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vkosndksa ds vkosnu dks fujLr djrs gq, vkosndksa dks fookfnr Hkwfe ij tkus ls izfrcaf/kr fd;k tkrk gSA vkns’k ls mHk;i{kksa ds fo}ku vf/koDrk dks voxr djkosa rFkk vkns’k dh izfr Fkkuk/;{k ljlh ,oa vapy inkf/kdkjh cueu[kh dks Hkh HkstsaA vfHkys[k dks vfHkys[kkxkj esa lqjf{kr j[kus dh dk;Zokgh lqfuf’pr djsaA ”

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9 Upon consideration of the rival submissions, this Court would find that the order dated 16.02.2012 passed by the petitioner was subject matter of appeal before the Divisional Commissioner. While considering the order passed by the petitioner, as an Appellate Authority, the Divisional Commissioner has suo motu directed for initiation of proceedings against the petitioner on the charges, noted above.

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10 The charge memo is not based on any complaint from any quarter that the petitioner has passed the order dated 16.02.2012 based on any extraneous consideration or for personal gain. From the order passed by the petitioner, it is evident that he has rejected the application under the BLDR Act. The order shows due consideration of earlier order passed by the High Court, pending proceedings under the Land Ceiling Act and order passed by the Sub Divisional Officer under Section 146 of Criminal Procedure Code. Thereafter, the petitioner has rejected the application and passed orders restraining the appellants from going to the disputed lands. Such directions appear to have been passed

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in light of the orders noted above. Thus, even if the Commissioner was of the view that the order was without jurisdiction, the same per se would not constitute misconduct inviting any punishment.

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11 Having considered this relevant fact, this Court would further find that neither in the charge memo, nor in the impugned order of punishment, there is any reference to any material in support of the allegation that the petitioner had exceeded his jurisdiction as a quasi judicial authority based on any extraneous consideration or for any personal gain. The petitioner’s detailed and elaborate reply has been rejected by the Disciplinary Authority by recording the following cryptic order:

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“ Jh gsujh ds fo:) xfBr vkjksi i=] muls izkIr Li ‘ Vhdj.k ,oa ftyk inkf/kdkjh iwf.kZ;k¡ ls izkIr earO; dh leh{kk vuq’kklfud izkf/kdkj }kjk dh x;hA leh{kksijkUr Jh gsujh dks Hkwfe fookn fujkdj.k okn la0&80@11&12 esa vfUre vkns’k ikfjr fd;s tkus dk nks kh ik;k x;k D;ksafd ;g ekeyk vij lekgÙkkZ ds ‘ U;k;ky; esa fopkjk/khu FkkA

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mi;ZqDr of.kZr rF;ksa ds vkyksd esa lE;d fopkjksijkar Jh fo’othr gsujh fc0iz0ls0] dksfV Øekad&815@11] rRdkyhu Hkwfe lq/kkj mi lekgÙkkZ] cueu[kh] iwf.kZ;k¡ dks fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh] 2005 ¼le;≤ ij ;Fkk la’kksf/kr½ fu;e&19 esa fofgr izko/kkuksa ds rgr fu;e&14 esa mfYyf[kr fuEukafdr naM vf/kjksfir ,oa lalwfpr fd;k tkrk gS %&

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‘ (i) fuUnu ¼vkjksi o kZ&2011&12½ (ii) vlap;kRed izHkko ls nks osru o`f) ij

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jksdA ”

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12 The petitioner has preferred a revision, by way of

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memorial under Rule 24 (2) of the Bihar Government Servants

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(Classification, Control & Appeal) Rules, 2005. The competent authority, in the order dated 05.10.2020 rejecting the petitioner's review, has recorded similar cryptic consideration to the petitioner’s detailed and elaborate review.

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13 Both the orders dated 26.02.2020 passed by the Disciplinary Authority and order dated 05.10.2020 passed in the Review, are orders which show total non-application of mind and are without assigning any reason or referring to any material in support of the conclusion to show that the order had been passed on extraneous consideration or for any personal gain.

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14 The Apex Court, in the case of Union of India & Others -Versus- K K Dhawan, reported in (1993) 2 Supreme Court Cases 56, has enumerated the circumstances in which disciplinary action can be taken against an officer in respect of orders passed in exercise of judicial or quasi judicial powers. Paragraphs 28 and 29 of this judgment, relevant to the instant case, are being quoted for ease of reference, which reads as follows:

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“28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an

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officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:

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(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;

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(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

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(iii) if he has acted in a manner which is unbecoming of a Government servant;

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(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

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(v) if he had acted in order to unduly favour a party;

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(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago “though the bribe may be small, yet the fault is great.

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29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated.”

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15 From perusal of the order passed by the Disciplinary Authority, it is apparent that the conclusion is not based on any material whatsoever that the order passed by the petitioner, in any way reflects on his reputation for integrity or good faith or devotion to duty, that petitioner has shown any recklessness or misconduct in discharging of his duty or that he has acted in a manner which is unbecoming of a Government servant. There is no finding based on any material whatsoever that the petitioner was negligent, or had omitted the prescribed conditions essential for exercise of statutory powers under the BLDR Act. There is also no finding of the Disciplinary Authority regarding the order being actuated by corrupt motive or to unduly favour a party. The order dated 16.02.2019 passed by the petitioner in exercise of his power as a quasi judicial authority, in the above noted facts and circumstances, even if it was a wrong order, or an order without jurisdiction, could not form the basis of disciplinary action against the petitioner.

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16 It is also an admitted position that the order which forms the basis of action against the petitioner has been set aside by the Divisional Commissioner, who is the author of charge memo against the petitioner.

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17 For the reasons indicated above, this Court would hold that the order of punishment is unsustainable.

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18 The order dated 26.02.2020 is hereby quashed. The order of the Revisional Authority dated 05.10.2020, being an affirmation of the illegal order, for the reasons indicated above, is consequently held to be legally unsustainable and is also quashed.

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19 This writ petition is allowed with all consequential

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benefits.

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(Madhuresh Prasad, J)

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M.E.H. /-

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AFR/	AFR
CAV DATE	NA
Uploading Date	21.11.2022
Transmission Date	NA

Bishwajit Henry v. The State of Bihar through the Principal Secretary

Case brief

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Bishwajit Henry v. The State of Bihar through the Principal Secretary

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